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EXHIBIT 10.42
FIFTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of January 10, 2001 (this "Amendment"), is made by and among BUDGET GROUP, INC.,
a Delaware corporation (the "Borrower"), the Lenders (such capitalized term and
all other capitalized terms not otherwise defined herein shall have the meanings
provided for in Article I below) parties hereto and CREDIT SUISSE FIRST BOSTON,
as administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents have heretofore
entered into that certain Amended and Restated Credit Agreement, dated as of
June 19, 1998 (as amended by the First Amendment to Amended and Restated Credit
Agreement dated as of September 11, 1998, the Second Amendment to Amended and
Restated Credit Agreement dated as of March 18, 1999, the Third Amendment to
Amended and Restated Credit Agreement dated as of December 22, 1999, the Fourth
Amendment and Waiver to Amended and Restated Credit Agreement, dated as of
September 30, 2000, and as further amended, supplemented, amended and restated
or otherwise modified, the "Credit Agreement");
WHEREAS, the Borrower agreed pursuant to Section 2.2.11 of the Fourth
Amendment (i) to add an additional restriction in a new clause (ii) to the
proviso to Section 8.2.5 of the Credit Agreement that would limit the aggregate
amount of Investments since November 1, 2000 that could be utilized, directly or
indirectly, in connection with the operations conducted by the Borrower and its
Subsidiaries in Europe, the Middle East and Africa to $20,000,000, and (ii) to
make other modifications to Section 8.2.5 of the Credit Agreement that would
limit the aggregate amount of Investments in Foreign Subsidiaries of the
Borrower;
WHEREAS, the Borrower also agreed pursuant to Section 2.2.8 of the
Fourth Amendment to add an additional affirmative covenant to the Credit
Agreement as Section 8.1.12 pursuant to which the Borrower would furnish to the
Administrative Agent prior to December 15, 2000 a written proposal to amend the
definition of "Borrowing Base Amount" in the Credit Agreement;
WHEREAS, the Borrower desires (i) to amend the $20,000,000 ceiling for
Investments in Europe, the Middle East and Africa so that it may make the
Investments described in
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Schedule I hereto and (ii) to extend the December 15, 2000 delivery date for the
Borrowing Base Amount proposal;
WHEREAS, the Required Lenders are willing, on and subject to the terms
and conditions set forth below, to amend certain provisions of the Credit
Agreement as provided below (the Credit Agreement, as amended and otherwise
modified pursuant to the terms of this Amendment, being referred to as the
"Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the Required Lenders hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Definitions. The following terms (whether or
not underscored) when used in this Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble.
"Amended Credit Agreement" is defined in the fifth recital.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
SECTION I.2. Other Definitions. Terms for which meanings are
provided in the Amended Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Subject to the satisfaction of the conditions set forth in Article III,
effective as of the date hereof, the Credit Agreement is hereby amended in
accordance with this Article II.
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SECTION II.1. Amendment to Section 1.1 of the Credit Agreement.
Section 1.1 of the Credit Agreement ("Defined Terms") is hereby amended by
inserting in such Section the following definition in the appropriate
alphabetical order:
"Fifth Amendment" means the Fifth Amendment to
Amended and Restated Credit Agreement, dated as of January 10,
2001, among the Borrower, the Lenders parties thereto and the
Agents.
SECTION II.2. Amendment to Section 8.1.12 ("Borrowing Base") of the
Credit Agreement. Section 8.1.12 of the Credit Agreement is hereby amended by
deleting the reference therein to "December 15, 2000", and substituting therefor
"January 15, 2001".
SECTION II.3. Amendment to Section 8.2.5 ("Investments") of the
Credit Agreement. Section 8.2.5 of the Credit Agreement is hereby amended by:
(a) deleting the reference in clause (g) thereof to
"$65,000,000" and substituting therefor "$75,000,000"; and
(b) deleting the reference in clause (ii) of the proviso
thereto to "$20,000,000" and substituting therefor "$30,000,000".
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment, and the amendments and modifications contained herein,
shall be and shall become effective as of the date hereof subject to the
satisfaction of each of the conditions set forth in this Article III to the
satisfaction of the Administrative Agent.
SECTION III.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of the Borrower and each of the Required Lenders.
SECTION III.2. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, a certificate, dated the
date hereof, appropriately completed and duly executed and delivered by an
Authorized Officer of the Borrower in which certificate the Borrower shall agree
and acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Borrower made as of such date and,
at the time such certificate is delivered, such statements shall in fact be true
and correct.
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SECTION III.3. Execution of Affirmation and Consent. The
Administrative Agent shall have received an affirmation and consent in form and
substance satisfactory to it, duly executed and delivered by each Guarantor and
any other Obligor that has granted a Lien pursuant to any Loan Document.
SECTION III.4. Fees and Expenses. The Administrative Agent shall
have received all fees and expenses due and payable pursuant to Section 5.4 (to
the extent then invoiced) and pursuant to the Credit Agreement (including all
previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1. Representations and Warranties. In order to induce
the Required Lenders and the Administrative Agent to enter into this Amendment,
the Borrower hereby represents and warrants to the Administrative Agent, the
Issuer and each Lender, as of the date hereof, as follows:
(a) the representations and warranties set forth in
Article VII of the Credit Agreement (excluding, however, those
contained in Section 7.7 of the Credit Agreement) and in each other
Loan Document are, in each case, true and correct (unless stated to
relate solely to an earlier date, in which case such representations
and warranties are true and correct as of such earlier date);
(b) except as disclosed by the Borrower to the Agents,
the Issuer and the Lenders pursuant to Section 7.7 of the Credit
Agreement
(i) no labor controversy, litigation,
arbitration or governmental investigation or proceeding is
pending or, to the best knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries which might
materially adversely affect the Borrower's consolidated
business, operations, assets, revenues, properties or
prospects or which purports to affect the legality, validity
or enforceability of this Agreement, the Notes or any other
Loan Document; and
(ii) no development has occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 7.7
of the Credit Agreement which might materially adversely
affect the consolidated businesses, operations, assets,
revenues, properties or prospects of the Borrower and its
Subsidiaries;
(c) neither the Borrower nor any of its Subsidiaries nor
any other Obligor is in material violation of any law or governmental
regulation or court order or decree;
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(d) this Amendment has been duly authorized, executed and
delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with
its terms, except to the extent the enforceability hereof may be
limited by (i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting the rights and remedies of creditors generally and (ii)
the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law; and
(e) the execution, delivery and performance by the
Borrower and its Subsidiaries of this Amendment and each other Loan
Document executed or to be executed by any of them in connection
therewith are within the Borrower's and each such Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene the Borrower's or such Subsidiary's
Organic Documents, (ii) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or such Subsidiary or (iii) result in, or
require the creation or imposition of, any Lien (other than the Liens
created under the Loan Documents in favor of the Administrative Agent
for the benefit of the Secured Parties) on any of the Borrower's or
such Subsidiary's properties.
SECTION IV.2. Full Disclosure. Except as corrected by written
information delivered to the Agents and the Lenders reasonably prior to the date
on which this representation is made, all factual information heretofore or
contemporaneously furnished by the Borrower in writing to any Agent, the Issuer
or any Lender for purposes of or in connection with this Amendment or any
transaction contemplated hereby is true and accurate in every material respect
and such information is not incomplete by omitting to state any material fact
necessary to make such information not misleading. All projections delivered to
any Agent or any Lender by or on behalf of the Borrower have been prepared in
good faith by the Borrower and represent the best estimates of the Borrower, as
of the date hereof, of the reasonably expected future performance of the
businesses reflected in such projections.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Full Force and Effect; Limited Amendment. Except as
expressly provided herein, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain in full force and effect in accordance with their
respective terms and are in all respects hereby ratified and confirmed. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein hereby and shall not be deemed to be an
amendment to, waiver of, consent to or modification of any other term or
provision of the Credit Agreement,
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any other Loan Document referred to therein or herein or of any transaction or
further or future action on the part of the Borrower or any other Obligor which
would require the consent of any of the Lenders under the Credit Agreement or
any of the other Loan Documents.
SECTION V.2. Loan Document Pursuant to Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Credit Agreement and shall
be construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement (and, following the date hereof, the Amended
Credit Agreement). Any breach of any representation or warranty or covenant or
agreement contained in this Amendment shall be deemed to be an Event of Default
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION V.3. Further Assurances. The Borrower hereby agrees that
it will take any action that from time to time may be reasonably necessary to
effectuate the amendments contemplated herein.
SECTION V.4. Fees and Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment and the documents and transactions contemplated hereby, including the
reasonable fees and disbursements of Mayer, Brown, and Xxxxx, as counsel for the
Administrative Agent.
SECTION V.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION V.6. Execution in Counterparts. This Amendment may be
executed by the parties hereto in counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION V.7. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION V.8. Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION V.9. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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SECTION V.10. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or general partners (or their respective
officers) thereunto duly authorized as of the day and year first above written.
BUDGET GROUP, INC.
By:
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
and the Administrative Agent
By:
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Name:
Title:
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
BANK OF HAWAII
By:
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Name:
Title:
BANK OF MONTREAL
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By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
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Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A. GROUP, NEW YORK BRANCH
By:
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Name:
Title:
BANK UNITED
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By:
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Name:
Title:
BANKERS TRUST COMPANY
By:
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Name:
Title:
BNP PARIBAS
By:
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Name:
Title:
By:
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Name:
Title:
BANQUE WORMS CAPITAL CORPORATION
By:
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Name:
Title:
BHF (USA) CAPITAL CORPORATION
By:
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Name:
Title:
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By:
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Name:
Title:
CHASE MANHATTAN BANK, N.A.
By:
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Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Name:
Title:
By:
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Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By:
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Name:
Title:
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CREDIT AGRICOLE INDOSUEZ
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By:
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Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By:
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Name:
Title:
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FLEET BANK, N.A.
By:
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Name:
Title:
THE FUJI BANK, LIMITED
By:
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Name:
Title:
IMPERIAL BANK
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
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Name:
Title:
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NATEXIS BANQUE
By:
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Name:
Title:
SATELLITE DISTRESSED CREDITS FUND, LLC
By: Satellite Asset Management, L.P., its
Investment Manager
By:
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Name:
Title:
SOUTHERN PACIFIC BANK
By:
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Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By:
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Name:
Title:
SUNTRUST BANK CENTRAL FLORIDA, N.A.
By:
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Name:
Title:
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XXXXXXX XXXXXXXX (TEXAS), INC.
By:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
Title:
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